Tsiva, Inc. v. Attorney Gen., Case No. 3:12-cv-631-J-34PDB

• Decision Date: 24 November 2014
• Docket Number: Case No. 3:12-cv-631-J-34PDB
• Court: U.S. District Court — Middle District of Florida
• Parties: TSIVA, INC., et al., Plaintiffs, v. ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, et al., Defendants.

TSIVA, INC., et al., Plaintiffs, v. ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, et al., Defendants.

Case No. 3:12-cv-631-J-34PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

November 24, 2014

ORDER

This action arises out of the United States Citizenship & Immigration Services' ("USCIS") denial of a Form I-140 petition for an employment-based immigrant visa, and the Administrative Appeals Office's ("AAO")¹ subsequent denials of an appeal and two motions to reopen and reconsider. It is before the Court on cross motions for summary judgment.

I. Background

Plaintiff, the proposed beneficiary of an employment-based immigrant visa, Sivanipaditham Thaimanisamy ("Thaimanisamy"), is a native of India and a citizen of Malaysia. See Certified Administrative Record at 263 (Doc. 17; CAR).² Thaimanisamy owns51% of Plaintiff Khesmir, Inc. ("Khesmir"),³ a Malaysian corporation which operates the longstanding Khesmir Restaurant, as well as a large corporate cafeteria, both located in Penang, Malaysia. Id. at 20, 22, 54, 59, 61. In 2004, Thaimanisamy came to the United States and formed a partnership with Plaintiff Nagarajan Sivanipaditham ("Sivanipaditham"),⁴ with whom he incorporated, Plaintiff Tsiva, Inc. ("Tsiva"). Id. at 54. Tsiva purports to operate Big Pete's Pizzeria, a restaurant located in Jacksonville, Florida. Id. at 267.

On October 25, 2006, Tsiva filed a Form I-140 petition on Thaimanisamy's behalf for an employment-based immigrant visa,⁵ seeking to have Thaimanisamy, in his capacity as President of Tsiva, classified as a "multinational business executive or manager" pursuant to 8 U.S.C. § 1153(b)(1)(C) (also known as § 203(b)(1)(C) of the Immigration and Nationality Act ("INA")). Id. at 263.⁶ On July 31, 2007, a representative located at the Nebraska Service Center of the USCIS⁷ sent a request for additional evidence to support the visa petition ("Request for Evidence" or "RFE"), id. at 260-62, to which Tsiva responded, id. at 242-59. By decision dated December 26, 2007, the Regional Director of the Nebraska Service Centerof the USCIS denied Tsiva's Form I-140 petition after finding that Tsiva failed to establish that Thaimanisamy had been or would be employed in a managerial or executive capacity. Id. at 234-38. On or about January 25, 2008, Tsiva submitted Notice of a Form I-290B appeal, id. 224-33, and on February 27, 2008, Tsiva submitted a legal brief and additional evidence in support of that appeal, id. 207-23. On December 19, 2008, the AAO denied Tsiva's appeal, and affirmed the USCIS's December 26, 2007 decision for the additional reason that Tsiva had failed to establish a qualifying relationship between itself and Khesmir. Id. at 197-206. On or about January 15, 2009, Tsiva submitted a Form I-290B motion to reopen and reconsider, bearing a signature stamp. Id. at 34-35, 196. The AAO rejected Tsiva's January 15, 2009 motion to reopen and reconsider because the Form I-290B did not include an original handwritten signature. Id. at 196. Tsiva resubmitted the Form I-290B motion to reopen and reconsider on or about January 30, 2009, this time with an original handwritten signature, and additional documentation in support of the request ("first motion to reopen and reconsider"). Id. 34-195. The AAO dismissed the first motion to reopen and reconsider on May 6, 2010. Id. at 30-33. Undeterred, on or about June 4, 2010, Tsiva submitted a second Form I-290B motion to reopen and reconsider the AAO's December 19, 2008 decision ("second motion to reopen or reconsider"). Id. 5-29. On April 27, 2012, the AAO dismissed the second motion to reopen or reconsider. Id. at 1-4.

On May 29, 2012, Plaintiffs Tsiva, Khesmir, Thaimanisamy, and Sivanipaditham (collectively "Tsiva"), filed a Complaint for Judicial Review of Agency Denial of Tsiva, Inc.'s I-140 Petition for Alien Worker as a Multinational Executive or Manager Pursuant to Section 201(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) under theAdministrative Procedures Act 5 USC § 702 and 28 USC § 1331 (Doc. 1; Complaint), against "Respondents," Eric Holder, Attorney General, Department of Justice, and other federal officials, (collectively "Defendants").⁸ In this action, Tsiva seeks injunctive and declaratory relief pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701 et. seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. See generally Complaint. Tsiva asks the Court to "[c]onduct such hearings and examinations of Plaintiffs as necessary to adjudicate the Form I-140 Petition for Alien Worker," and to declare as unlawful, arbitrary and capricious, an abuse of discretion, and not in accordance with the law, the USCIS's denial of Tsiva's Form I-140 petition and the AAO's denial of Tsiva's subsequent appeal and motions to reopen and reconsider. Id. at 18-19. Tsiva also seeks an award of attorneys' fees and costs. Id. at 19.

On May 15, 2013, Tsiva filed Plaintiffs' Motion for Summary Judgment and Memorandum in Support of Motion (Doc. 9; Tsiva's Motion). That same day, Defendants filed Defendants' Cross Motion for Summary Judgment (Doc. 10; Defendants' Motion).⁹ On June 5, 2013, Tsiva filed Plaintiffs' Response to Defendant's [sic] Cross Motion for Summary Judgment (Doc. 11; Tsiva's Response), and Defendants filed Defendants' Opposition to Plaintiffs' Motion for Summary Judgment (Doc. 12; Defendants' Response). Then, on June14, 2013, Plaintiffs filed Plaintiffs' Reply Brief for Summary Judgment (Doc. 14; Tsiva's Reply), and Defendants filed Defendants' Reply in Support of Defendants' Cross Motion for Summary Judgment (Doc. 13; Defendants' Reply). Accordingly, the matter is ripe for review.

II. Jurisdiction

On February 14, 2014, the Court entered an Order (Doc. 16; Order) in which it sua sponte raised the question of whether the Court has subject matter jurisdiction over this action in light of 8 U.S.C. § 1252(a)(2)(B)(ii), which provides:

(2) Matters not subject to judicial review

. . .

(B) Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory) . . . and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

. . .

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter¹⁰ to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B)(ii). At the Court's direction, see Order at 5, the parties each submitted a supplemental memorandum in which each took the position that the Court has subject matter jurisdiction over Tsiva's claims. See Defendants' Supplemental MemorandumAddressing Subject Matter Jurisdiction (Doc. 18); Plaintiff's Memorandum as to Court's Subject Matter Jurisdiction (Doc. 19).

Upon review of the parties' supplemental memoranda and the relevant legal authority, the Court is satisfied of the existence of subject matter jurisdiction over this action. "The INA's judicial review statute eliminates review by any court of discretionary decisions or actions of the Attorney General or Secretary." Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1142 (11th Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(B)(ii)) (footnote omitted). However, notwithstanding this general limitation, a court maintains jurisdiction over purely legal questions of statutory eligibility. See Williams v. Sec'y, U.S. Dep't of Homeland Sec., 741 F.3d 1228, 1231 (11th Cir. 2014) (citing Mejia Rodriguez, 562 F.3d at 1142-45). Tsiva petitioned the USCIS for an employment-based visa under 8 U.S.C. § 1153, a provision under which "certain employment-based immigrants are given first priority for visa preferences." Sunshine Co. Food Distrib., Inc. v. U.S. Citizenship & Immigration Servs., 362 F. App'x 1, 3 (11th Cir. 2010) (citing 8 U.S.C. § 1153(b)(1)). "The USCIS enjoys broad discretion in deciding whether to grant or deny visa petitions based on preference classifications." Khamisani v. Holder, No. H-10-0728, 2011 WL 1232906, at *3 (S.D. Tex. March 31, 2011). However, just because the USCIS maintains the "ultimate discretionary authority" to grant or deny visa petitions does not mean that every USCIS decision on a petition for a preference-based visa is discretionary, and thus not subject to review. See Mejia Rodriguez, 562 F.3d at 1143 ("[S]imply because the Secretary [of the Department of Homeland Security] has the ultimate discretionary authority to grant an immigration benefit does not mean that every determination made by USCIS regarding an alien's application forthat benefit is discretionary, and hence not subject to review."). Indeed, the INA's judicial review statute "requires [courts] to look at the particular decision being made and to ascertain whether that decision is one that Congress has designated to be discretionary." Id. (emphasis in original).

The Eleventh Circuit's decision in Mejia Rodriguez is instructive. In Mejia Rodriguez, the court, quoting the Third Circuit's decision in Alaka v. Att'y Gen. of the U.S., 456 F.3d 88 (3d Cir. 2006), explains that "the Attorney General's general authority to arrive at an outcome through the application of law to facts is distinct from the issue of whether Congress has 'specified' that the decision lies in the Attorney General's discretion and is thus unreviewable." Alaka, 456 F.3d at 95-96 (footnote omitted). As such, the jurisdiction stripping provision of § 1252(a)(2)(B)(ii) comes into effect when such discretion is specified by the language of the statute in question. See id. at 96. The Eleventh Circuit then considered the jurisdiction-stripping implications of § 1252(a)(2)(B)(ii) in the context of an alien's request for Temporary Protective Status ("TPS"), and concluded that the...